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Third Circuit Upholds Delaware's Lethal Injection Procedure

Delaware's death penalty was upheld as constitutional on Monday, paving
the way for executions -- on hold since May 2006 -- to resume.

Delaware Attorney General Beau Biden said Monday he was pleased the
court ruled that Delaware is meeting its constitutional obligations and
that his office will be working with Superior Court to begin
"scheduling executions as appropriate."

Biden said the three-year delay "caused uncertainty, and I'm glad this has resolved that uncertainty."

In
its 47-page opinion, the 3rd U.S. Circuit Court of Appeals warned
Delaware about "the worrisome course it appears to have taken at times"
in executions.

"The
record before us reflects an occasional blitheness on Delaware's part
that, while perhaps not unconstitutional, gives us great pause. We
remind Delaware not only of its constitutional obligation ... but also
of its moral obligation to carry out executions with the degree of
seriousness and respect that the state-administered termination of
human life demands," Circuit Judge D. Michael Fisher wrote on behalf of
the panel.

Attorney
Michael Wiseman of the Federal Community Defender's office in
Philadelphia -- which represents Delaware's 18 death-row inmates in the
class-action lawsuit -- declined to comment Monday, saying he was still
reviewing the opinion.

In
court papers, attorneys for Delaware's condemned inmates detailed
problems during executions, including inadequate qualifications and
training of execution team members, improper dosages of the lethal
injection drugs and odd procedures such as the execution team mixing
drugs in the dark.

And:

Attorneys here focused on the November 2005 execution of Brian
Steckel -- the last person put to death in Delaware. During Steckel's
execution, an intravenous line used to deliver the deadly drug cocktail
became blocked and the procedure took far longer than usual.

At
one point in the execution, Steckel -- who was convicted in the 1994
slaying of Sandra Lee Long -- looked up at prison officials and said,
"I didn't think it would take this long."

A federal appeals court ruled Monday that Delaware’s use of lethal
injection is constitutional, clearing the way for executions to resume
but warning the state to follow its own rules.

A three-judge panel upheld a ruling by District Judge Sue Robinson
last March that death row inmates in Delaware had failed to demonstrate
that the state’s new lethal injection protocol, which has never been
used, carries a significant or intolerable risk of pain that might
amount to cruel or unusual punishment.

The
appeals court lifted a stay on executions that Robinson had kept in
place pending appeal of her ruling, which came in a lawsuit filed
before the state changed its execution procedure in 2008. The changes
were designed to ensure that a condemned inmate is rendered unconscious
by the anesthetic sodium thiopental before receiving fatal and
potentially painful doses of two paralytic drugs, pancuronium bromide
and potassium chloride.

The panel nevertheless said it
expects Delaware not to repeat mistakes surrounding previous
executions. Robinson noted in her ruling that some condemned inmates
received improper doses of the three-drug combination, and that
officials failed to keep written records and ensure that execution
teams were properly trained.

“Our holding, of course,
should in no way be construed as license for Delaware to stay the
worrisome course it appears to have taken at times under its former
protocol,” Judge D. Michael Fisher wrote for the appeals panel.

“The
record before us reflects an occasional blitheness on Delaware’s part
that, while perhaps not unconstitutional, gives us great pause,” Fisher
added. “We remind Delaware not only of its constitutional obligation to
ensure that the implementation of its new protocol does not run afoul
of the Eighth Amendment’s proscription of cruel and unusual punishment,
but also of its moral obligation to carry out executions with the
degree of seriousness and respect that the state-administered
termination of human life demands.”

And:

The panel specifically found no evidence that any of the 13 inmates
executed by lethal injection in Delaware since 1992, including Steckel,
were still conscious when they received the first lethal paralytic.
Even assuming that Steckel suffered great pain because of problems
injecting him with sodium thiopental, the panel said the Supreme Court
had ruled in the Kentucky case that a single mistake does not
demonstrate that the protocol itself carries a substantial risk of
serious harm.

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The StandDown Texas Project

The StandDown Texas Project was organized in 2000 to advocate a moratorium on executions and a state-sponsored review of Texas' application of the death penalty.
To stand down is to go off duty temporarily, especially to review safety procedures.

Steve Hall

Project Director Steve Hall was chief of staff to the Attorney General of Texas from 1983-1991; he was an administrator of the Texas Resource Center from 1993-1995. He has worked for the U.S. Congress and several Texas legislators. Hall is a former journalist.